NO. COA06-111
Appeal by defendant from a judgment entered 11 October 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Charlene Bell Richardson, for the State.
Richard G. Roose, for defendant-appellant.
BRYANT, Judge.
Antwone Dennard Archie (defendant) appeals from a judgment
entered 11 October 2005 after the jury found him guilty of
conspiracy to sell cocaine, possession with intent to sell and
deliver cocaine, and habitual felon status. For the reasons stated
below, we affirm the trial court.
Facts
The State adduced evidence that Winston-Salem Police Officer
Michael Cardwell purchased $20 worth of crack cocaine in the 1100
block of New Hope Lane in Winston Salem, North Carolina on 13
October 2004. Officer R.J. Paul asked Cardwell to attempt an
undercover purchase after his surveillance revealed “street-level
drug sales occurring in that area[.]” Cardwell entered the blockin an unmarked vehicle and was approached by Ricky Davis, who asked
“what [he] wanted.” Cardwell requested “a twenty[.]” Davis
signaled to defendant, who emerged from the porch of a nearby
apartment. After telling Cardwell to wait, Davis walked over to
defendant and engaged in a hand-to-hand exchange in which defendant
appeared to place an object into Davis' cupped hand. Davis
returned to Cardwell's vehicle and gave him a small piece of crack
cocaine from the same hand used in his exchange with defendant.
Cardwell paid Davis with a $20 bill bearing a pre-recorded serial
number. After watching Davis conduct a second hand-to-hand
exchange with defendant, Cardwell reported the buy to Paul. Paul
and Officer Michael Buccino entered the area in an unmarked vehicle
and saw defendant standing beside a porch. Buccino arrested
defendant and found Cardwell's marked $20 bill in his wallet.
The State presented additional evidence that defendant
previously sold crack cocaine to Cardwell at the same location on
23 September 2004. On this occasion, defendant personally
approached Cardwell's vehicle, took his order, retrieved the
cocaine from a third party, and returned to the vehicle to complete
the transaction. Evidence of this prior act was admitted pursuant
to N.C. R. Evid. 404(b) and was accompanied by an appropriate
limiting instruction.
Defendant was found guilty of possession with intent sell and
deliver cocaine and of conspiracy to sell cocaine, whereupon he
admitted his status as an habitual felon. The trial court
consolidated his offenses for judgment and sentenced him to apresumptive prison term of 136 to 173 months. Defendant gave
notice of appeal in open court.
_________________________
Defendant presents a single issue on appeal: whether the
trial court erred in overruling defendant's objections to questions
posed at trial by counsel for the State, asking a witness to give
expressions of opinion. Specifically, defendant claims the trial
court erred by allowing Officer Paul to offer improper “opinion”
testimony regarding defendant's behavior during and after his
transactions with Cardwell on 23 September 2004 and 13 October
2004. The court overruled an objection to Paul's interpretation of
a hand motion made by defendant prior to his arrest on 13 October
2004, as follows:
A. Once we pulled up in the area,
[defendant] was facing the street, and once he
observed us exiting the vehicle, he turned and
walked away toward . . . New Hope Lane. . . .
His hand was clutched like this, his right
hand; he did something like this towards his
mouth.
Q. Have you seen that motion before?
A. I've seen that motion numerous times.
Q. Where?
A. In known drug areas, known drug dealers
we watch, they would eat their dope.
Q. Do you have an opinion about what
happened when he put his hand to his mouth?
A. Yes. It was my opinion --
[DEFENSE COUNSEL]: Objection, Your Honor.
[THE COURT]: Overruled. A.
It was my opinion that he had put a rock
or some type of narcotic in his mouth to, so
that we would not get it.
(Emphasis added). Paul later testified that he asked Cardwell to
attempt the purchase on 23 September 2004, after observing
defendant “making numerous hand-to-hand transactions out there.”
The prosecutor then asked him about defendant's retrieval of the
drug from a third party, as follows:
Q. Do you have an opinion as to why
[defendant] had to go to a third person to get
drugs on that day?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. It is my opinion, due to the numerous
transactions I observed on that day involving
[defendant], that he had sold out of drugs
that day, and he had to go to Mr. Holman
(phonetic) to make the deal to Detective
Cardwell.
Defendant faults the court for allowing Paul to offer “unverified
baseless conclusions” that defendant (1) possessed and swallowed
cocaine just before his arrest on 13 October 2004, and (2) engaged
in multiple sales of cocaine prior to his transaction with Cardwell
on 23 September 2004. He argues that Paul's testimony exceeded the
limited scope of permissible lay opinion under N.C. R. Evid. 701,
because it assumed facts outside of his personal knowledge.
Under our rules of evidence, lay testimony “in the form of
opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of his testimony or the
determination of a fact in issue.” N.C. R. Evid. 701. “As long asthe lay witness has a basis of personal knowledge for his opinion,
the evidence is admissible.”
State v. Bunch, 104 N.C. App. 106,
110, 408 S.E.2d 191, 194 (1991). Moreover, “[i]t is appropriate
for law enforcement officers to testify as to various customs and
practices observed by them in the exercise of their duties as
officers.”
State v. Martin, 97 N.C. App. 19, 29, 387 S.E.2d 211,
216 (1990) (citation omitted).
Before offering the testimony at issue, Paul stated he had
conducted narcotics investigations within the department's vice and
narcotics unit for a year prior to defendant's trial. He spent the
preceding eight years on foot patrol in two public housing
communities, focusing on “street-level drug dealers and street-
level crime in the housing community.” Paul estimated that he
witnessed twenty to thirty prior occasions in which a suspect
swallowed illicit drugs in response to police presence in a manner
consistent with defendant's hand motion on 13 October 2004. The
officer's years of experience with the methods of street-level drug
offenders placed him in a better position than the jury to
interpret defendant's behavior during and after his transactions
with Cardwell.
See State v. Friend, 164 N.C. App. 430, 437, 596
S.E.2d 275, 281 (2004);
Bunch, 104 N.C. App. at 110, 408 S.E.2d at
194;
see also State v. McCoy, 105 N.C. App. 686, 689, 414 S.E.2d
392, 394 (1992) (treating officer's specialized knowledge as
expertise under N.C. R. Evid. 702(a), despite lack of formal tender
as an expert witness). Inasmuch as Paul drew inferences only from
acts of defendant which he observed firsthand, his testimony wasadmissible as lay opinion. Accordingly, defendant's assignments of
error are overruled.
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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